Legal Practitioners’ Right of Appearance at the CCMA: The CCMA Responds
Just a few months ago, South African advocates, attorneys and candidate attorneys alike were celebrating therulingof an arbitrator attached to the Dispute Resolution Centre (“DRC”) of the Metal and Engineering Industries Bargaining Council in the matter betweenCoetzee v Autohaus Centurion.
In this matter, the applicant employee had applied to be legally represented at an arbitration. Rule 43 of the DRC rules states that legal practitioners may not represent a party to a dispute at the DRC if the dispute concerns an allegation that an employee was dismissed because of his/her misconduct or incapacity, unless the parties agree to such representation or the arbitrator exercises a discretion in favour of permitting legal representation. The arbitrator came to the conclusion that section 25 of the Legal Practice Act, 2014 supersedes this rule and the equivalent rule in the Commission for Conciliation, Mediation and Arbitration Rules (“CCMA Rules”), namely rule 25. Section 25 states that a legal practitioner has the right to appear “in any court in the Republic or before any board tribunal or similar institution” but “subject to any other law”.
Perhaps predictably, this ruling did not find favour with the CCMA. In the CCMA’s first directive for 2019, effective as at 23 March 2019, the CCMA sought to clear the air in respect of the allegations of a conflict between the CCMA Rules and the Legal Practice Act.
The conclusions and arguments set out in the directive can be summarised as follows:
Two important questions arise from this episode. The first is what legal status, if any, such a directive issued by the CCMA has? While it may be argued that it is necessary for the CCMA to be able to provide guidance to its commissioners on certain issues, would unconsidered compliance with such a directive by a commissioner not lead to the argument that a commissioner has not applied his or her mind to the issue dealt with in the directive?
The second is what impact a directive to CCMA commissioners will have on arbitrators appointed by bargaining councils? While the rules governing bargaining council arbitrations are derived from collective agreements rather than from the LRA itself, they often closely follow the CCMA rules.
More litigation in this regard is likely.
Reviewed by Peter le Roux, an executive consultant in ENSafrica’s employment department.
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